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Introduction

To obtain a professional license in the healthcare arena is not easy. First of all, it takes a large amount of schooling, sometimes eight years following high school. Second, this education can be very expensive, easily leading to six figure student loan debt upon graduation. Then there’s the need to participate in clinical training, take rigorous exams and obtain necessary licensing and certification. And after accomplishing all of this, there are still more sacrifices that will be required, in the form of giving up significant portions of your personal life to meet the time demands that your particular practice requires.

But it’s worth it, right? Having the ability to help people in need and make a difference in the lives of your patients and your community is priceless. Although you can’t always save everyone and there’s only so much you can do. Or perhaps things should have turned out better and you should have been able to create a more positive outcome for your patient. But due to forces outside of your control, it didn’t work out that way.

If something bad were to happen to one of your patients, they will be understandably upset. And there’s a good chance they’re going to try and figure out what went wrong and determine if there’s someone to blame. Unfortunately, if you were the doctor of record, you would make a very easy target.

So, imagine on an idle Thursday afternoon when you’re thinking about what your weekend plans are, your office manager hands you the office mail. There’s the usual promotional literature from pharmaceutical companies, a few medical journals…and a letter from the Maryland Board of Physicians. Hmmm, that’s strange, you think. You’re pretty sure you renewed your license on time this year and with all of the correct information. Maybe this is just some boilerplate letter that they send out to everyone about some administrative change in how license renewals will work next year or something.

You open up the letter and quickly realize that it’s a notice of a complaint that a former patient has filed against you. Currently, the Board is engaged in an investigation as to the merits of the complaint and they would like your cooperation by providing them with some information as to what happened, which includes a personal interview.

One of your biggest fears is now a distinct possibility and the following questions begin to swirl in your head:

• There must be some kind of mistake or mix up, right? • What kind of punishment am I going to have to potentially face? • Can my license get suspended? • Will I lose the ability to practice medicine? • Is there a fine I’ll have to pay? • How can I afford to fight these allegations? • What if these allegations are true? • What if they’re not true – the fact that they’re being made might ruin my career. How is that

fair? • Do I need a lawyer?

Now, what you’re going to do with your family this weekend is the least of your worries. Your entire career could come crashing down simply because of a single mistake you may (or may not have) made.

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What do you do now? That’s where this e-book comes in. Its purpose is to provide healthcare professionals like you with an overview of the disciplinary process before the Maryland Board of Physicians. It is also designed to provide you with general advice on steps that you should take if you ever find your professional license in a situation similar to the one described above.

As always, the best way to deal with a professional licensing issue is not to have one. Unfortunately, things happen, so you must be prepared to take the steps you need to protect your career. This e-book will arm you with the information you need to do just that. Should you want to speak with one of our professional license defense attorneys, please do not hesitate to call our office at (410) 514-6099 or visit our website at www.staffordtrialteam.com.

The Maryland Board of Physicians

Who Are They and Who Do They Oversee?

The Maryland Board of Physicians (Board), which was previously known as the Maryland State Board of Physician Quality Assurance, dates back to July 1, 1988. Since that time, it has had the sole responsibility for licensing and disciplining Maryland physicians and allied health practitioners. Besides traditional physicians, the Board also oversees licensing and disciplinary matters for the following allied health professionals:

• Athletic Trainers • Naturopathic Doctors • Nuclear Medicine Technologists • Perfusionists • Physician Assistants • Polysomnographers • Radiation Therapists • Radiographers • Radiologist Assistants • Respiratory Care Practitioners

Currently, the Board consists of 22 members, but not all members are physicians. The members of the Board consist of the following:

• Eleven practicing licensed physicians who are appointed by the Governor with the advice of the Secretary of the Department of Health and the advice and consent of the Maryland Senate;

• One practicing licensed physician appointed at the Governor’s discretion; • One physician representative of the Maryland Department of Health; • One licensed physician assistant appointed at the Governor’s discretion; • Two practicing licensed physicians with full-time faculty appointments nominated by their

respective academic medical institutions; • Five consumer members; and • One public member knowledgeable in risk management or quality assurance matters appointed

from a list submitted by the Maryland Hospital Association.

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What Is Its Mission?

Contrary to popular belief within the healthcare community, the mission of the Board is not to help medical professionals keep their licenses. Instead, its primary focus is to protect the public. Specifically:

The mission of the Board is to assure quality health care in Maryland, through the efficient licensure and effective discipline of health providers under its jurisdiction, by protecting and educating the clients/customers and stakeholders, and enforcing the Maryland Medical Practice Act.

Because the protection of the public is the primary motivating factor behind the Board’s actions, every licensee should understand that the Board will have very little patience or understanding if their conduct places the public at risk. If you find yourself before the Board, always keep this in mind during every interaction you have with the Board.

Where Does it Derive Its Authority?

The Maryland Medical Practice Act (Act), which is codified at Md. Code Ann., Health Occ. §14-404, is the statutory basis through which the Board doles out discipline to licensees under its jurisdiction. If you are licensed by the Board and have not read the Act, you are inviting trouble to your door. As many a prosecutor would say to a jury, “ignorance is no excuse.”

As a licensee subject to discipline by the Board, the Act lists a multitude of acts and omissions that could subject your medical license to discipline. Not all of the acts and omissions listed in the Act are intuitive. For example, your medical license could be subject to discipline if you:

• Solicit or advertise in violation of Health Occ. §14-503. • Fail to educate a patient being treated for breast cancer of alternative methods of treatment as

required by Md. Code Ann., Health-General §20-113. • Do not display the notice required under Health Occ. §14-415.

By having a general knowledge of the Act, you are taking a critical step toward preventing a potential disciplinary issue. As a doctor, you of all people understand that prevention is far easier than treatment. Indeed, by educating yourself now, you increase the likelihood that you will be able to recognize a potential issue before it materializes into something that could be actionable against your professional license.

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Disciplinary Action by the Board

The Board can potentially dispense discipline for actions not only taken as a licensed physician or allied health professional, but before a license is even issued. For example, some medical professionals find themselves in trouble before the Board for things they said (or didn’t say) during the license application process.

The Application for Licensure: Pitfalls and Traps for the Unwary

Some individuals run into trouble before they even get their medical license because they fail to pay close attention to specific questions on their applications for licensure. One of the worst ways to begin your foray into the medical field is to get a note from the Board’s Licensure Unit inquiring about information that you did not provide, such as previous licensure or disciplinary action in another jurisdiction. These are mistakes that you cannot make on your application.

The Board has an entire unit that is dedicated to reviewing and processing the nearly 20,000 initial and renewal applications it receives each year. As part of the processing of applications, the Licensure Unit requires all applicants to submit to a criminal history record check and a search of the National Practitioner Data Bank to identify any prior disciplinary action that may have been taken against the applicant in any other jurisdiction.

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Because the Board is conducting its own background check of you, it’s very important that you are the one who identifies any issues for the Board, as opposed to them finding out on their own. If the Board finds out on its own, it will be less forgiving than when you notify them proactively. When completing your application, we advise on the side of over disclosure rather than under disclosure. By disclosing issues up front (i.e., before the Board finds out on their own), you are demonstrating to the Board that you are trustworthy, which is a character trait that this Board values.

Many applicants fail to err on the side of over disclosure for fear that the Board may deny them licensure. The applicants who run into problems with their application are the ones who come up with a multitude of reasons for believing the particular question on the application does not really apply to them. If you are doing mental gymnastics to interpret a question in such a way that it does not require you to provide an affirmative response, then you likely are getting ready to make a big mistake in your response to the Board.

If you do answer “yes” to any of the questions regarding character and fitness, you must make sure your explanation is as complete and comprehensive as possible. For example, if you disclosed that you had a prior criminal conviction, be sure to include not only the actual charge you were convicted of but also the other charges that may have been dismissed. Furthermore, be sure to provide the court and case number of the action where you received the conviction and the sentence you received.

The disclosure of this information up front is important, as it not only will help expedite your application but demonstrates to the Board that you have nothing to hide. Ultimately, they likely will ask you to forward paperwork associated with the case, but a complete and comprehensive initial explanation is an important first step to moving you along the path toward licensure as it provides you with an opportunity to show your integrity and transparency with the Board.

Practicing as a Medical Professional: What Not to Do

Fortunately, much of what results in disciplinary action from the Board comes from behavior that is easily avoidable or from results that are preventable. However, sometimes honest mistakes happen or things get in the way of the more administrative requirements for practicing medicine. Healthcare professionals commonly find themselves at risk of receiving sanctions from the Board for the following reasons:

• Practicing without a license or employing an unlicensed person; • Failing to meet continuing medical education (CME) requirements; • Engaging in “unprofessional conduct” while practicing medicine, including sexual or other

inappropriate contact with a patient; • Demonstrating physical or mental incompetence; • Failing to keep proper medical records, intentionally falsifying a medical record or failing to

provide lawfully requested medical records to another physician or health care provider; • Malpractice, i.e. providing “substandard care” in violation of accepted professional norms, as

determined by “appropriate peer review;” • Abuse of alcohol or drugs, or prescribing any controlled substance for non-medical reasons; • Intentional billing for medical services that were never provided, or accepting payment for

patient referrals; and

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• Conviction of any crime, whether or not it directly involves the license holder’s professional practice.

The Disciplinary Process

After the Complaint Is Filed

Once a complaint is filed against an applicant or a licensee, the Board’s Compliance Unit is tasked with investigating the complaint and making a recommendation as to whether disciplinary charges should be initiated. The Compliance Unit is comprised of professionals who are very well versed in the Board’s regulations and how to get the information they need to evaluate whether disciplinary charges should be brought.

One of the key things you as a licensee need to do is to timely and properly inform the Board of any change of address. Should you fail to keep the Board properly apprised of your address, then you risk having disciplinary action taken against your license without being able to participate in the process.

Under Maryland law, the Board can move forward with discipline on your license if it transmits the requisite correspondence to your address of record on file, even if you are no longer receiving mail at that address. Do not make the mistake of failing to keep your current address of record on file with the Board, as any negative consequences will rest solely on your shoulders.

The Investigation

When it comes to conducting an investigation, the Board’s most important tool is the subpoena power. This is a tool that is well used and allows the Board’s investigators to get documents from healthcare facilities and to interview potential witnesses who might have relevant information regarding the issue that they are investigating.

Because the Board’s investigators often will speak with your colleagues during their investigation, it is very important that you not make any admissions to your colleagues. It is not unusual for a Board’s investigator to go into an interview for the purpose of getting information about one topic relating to the target of their investigation but then to learn of additional issues about the target because that individual has made other admissions of misconduct to his or her colleagues. While we all share personal information with our colleagues, especially when we are working alongside them for long hours, it is very important to be mindful of the issues that you discuss with them for this very reason.

Typically, if you are the target of the Board’s investigation, the Board’s investigators will issue multiple subpoenas for documents to numerous individuals and facilities that might have relevant information. Then after reviewing those documents, they will subpoena you for a personal interview.

The Personal Interview

After the Board’s investigator has the documents that they need to fully understand the scope of your alleged misconduct, you can expect to receive a subpoena to provide testimony. This interview is not a casual conversation. Rather, it is an interview that is recorded and will be under oath, so prepare accordingly.

To prepare for a Board interview, you need to understand the following key aspects of your case:

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1. The information the Board might have; 2. The information that they need from you; and 3. The information that you want to communicate to the Board.

If you have a solid understanding of these three topics, then you will be able to effectively prepare for the Board interview and reduce the likelihood of being surprised. In thinking about the mechanics of the Board interview, here are some cardinal rules that you must follow:

• Understand that the Board’s investigator is NOT your friend and has a job to do – i.e., protect the public, not your license;

• Answer only the question asked; • Wait for them to fully ask the question, pause, and then THINK about your answer; • If you don’t understand the question, say so; • Do NOT ramble; • Do NOT be uncomfortable with silence. Let them do their job and ask the questions; • Do NOT volunteer information, unless helpful to your case (As a side note, you better know

what information is helpful to you before you step into that interview room. This is not information that you come up with “on the fly.”); and

• If presented with a document, take your time and read the ENTIRE document. Don’t assume you know what the document says.

A lot of these tips are very easy to understand and accept, but difficult to put into practice. That’s because when you’re nervous or otherwise in a stressful situation, it’s very easy to fall back on your “default” habits. That’s why before you sit down for your interview, you should get some practice.

Before our firm ever allows a client to sit for an interview with a Board’s investigator, we do a full practice session with the client and ask the questions that we anticipate that the Board’s investigator might ask. This is important because your attorney will be limited in the type of intervention that he or she can have during your interview with the Board’s investigator.

One major issue that you also have to understand is when the Board’s investigation may delve into potential matters where you might have criminal exposure. For example, there could be evidence of fraudulent billing, improperly dispensing of controlled substances or some other criminal conduct. It is critical that both you and your attorney are fully aware of any and all areas where you may have criminal exposure, so that you can be counseled appropriately. For instance, it might be in your best interest to refuse to answer a particular question and invoke your right against self-incrimination under the 5th Amendment of the U.S. Constitution. While it might not help you avoid disciplinary action, it may make it easier to defend a possible future criminal charge against you.

Usually, after your interview with the Board, the Board’s investigator will prepare a recommendation to a disciplinary panel of the Board as to whether disciplinary charges should be filed against your license. If the disciplinary panel decides to bring charges against your license, you will receive a charging document that outlines the charges that have been filed against your license. The case is then turned over to an administrative prosecutor in the Health Occupations Prosecution and Litigation Division at the Office of the Attorney General.

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If the Board Files Charges

If you’re unfortunate enough to have charges brought against your license, you now have some important decisions to make. The first critical decision that you must make is whether you plan on requesting a hearing. Normally, you have 30 calendar days to make that decision. We suggest that every client request a hearing upon receipt of disciplinary charges, as there is no downside in doing so.

Shortly after you request a hearing, the next recommendation is to request the investigative file from the administrative prosecutor. The administrative prosecutor typically will have no problem providing you with the investigative file at this point because the investigation has closed and charges have been filed. By getting the investigative file, you are able to fully appreciate the evidence that the administrative prosecutor has to support the disciplinary charges that have been filed against your license. This will allow you to better evaluate your case.

Depending on your case, there are some deadlines that may not be communicated to you and can be traps for the unwary. For example, if you have a case involving the standard of quality of care and there was a statement made by the patient that may not have been documented in the medical record of the patient. This can happen when there is an expression by the patient of a preference for one course of treatment over another. In this situation, you have 45 days following the filing of charges to notify the administrative prosecutor of this information. (See Code of Maryland Regulations “COMAR” 10.32.02.04C(2)).

Another thing you should do after requesting a hearing is prepare for the settlement conference.

Settlement Conference

The settlement conference will be before a disciplinary panel of the Board. If you properly request a hearing, then your case will be set in for a settlement conference, also known as a “Disciplinary Committee on Case Resolution Conference.”

As part of this settlement process, both you and the administrative prosecutor will have the opportunity to submit a written proposal to the Board outlining your proposed resolution of the charges. Ideally, the written settlement proposal will be a joint proposal from both you and the administrative prosecutor because you all will have reached a “deal” that you will jointly propose to the disciplinary panel.

One important thing to note is that even though you and the administrative prosecutor may have reached a “deal,” the disciplinary panel does not have to accept the proposal. They can propose a settlement with different terms than the one you jointly proposed with the administrative prosecutor. Nevertheless, the Board is more inclined to accept the terms outlined in a joint settlement proposal.

If you are not able to reach a joint settlement proposal, you will want to make sure that your written settlement proposal provides the panel with:

1. Your view of the relevant facts at issue, highlighting the facts that you believe are wrong or inconsistent with the charging document;

2. Some relevant background about you; 3. A discussion of relevant mitigating and aggravating factors (see COMAR 10.32.02.09); 4. If possible, a few letters of recommendation from key people who can inform the Board about

your character; and

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5. A proposal of disciplinary action that is within the realm of reason based on the facts at issue.

Once you’ve submitted your written proposal, you will then have an opportunity to go before the panel and give a statement, as well as answer any questions that the Board might have. The statements made before the disciplinary panel cannot be used against you should a settlement not be reached. However, be very careful about what you say or disclose, especially if it is not already known. At that meeting, also be prepared to answer any questions that the panel might have.

Evidentiary Hearing

While most of the cases are resolved at the settlement stage, there are some cases that must be litigated. This is usually for two reasons. First, there is a disagreement regarding the facts of the case. Second, the proposed penalty from the disciplinary panel is too steep for the doctor to accept.

Once a party decides to take the next step of litigating their case, the Board typically transfers the case to the Office of Administrative Hearings (OAH), which will assign an administrative law judge to preside over it. That administrative law judge will hear testimony, make rulings and proposed findings for the Board’s consideration.

If you know early on that you intend on litigating your case, you should be taking steps to prepare for the evidentiary hearing as soon as possible. For example, if you have a case that will require an expert witness, you should be identifying and retaining your expert as soon as possible, so that the expert can prepare a comprehensive and thorough expert report that will withstand scrutiny and cross examination at the evidentiary hearing. If you intend on presenting any testimony that goes beyond providing a factual account as to what happened, there’s a good chance you’ll need an expert witness.

For example, if you’ve been accused of providing substandard care in a childbirth case, you can’t have just anyone testifying as to whether or not your conduct rose to the level of malpractice. Instead, you’ll need someone well versed in the obstetric field of medicine, such as an obstetrician, to testify on your behalf. However, if you just need someone to testify as to what they observed in the sterile field (and not provide conclusions as to how this conduct did or did not meet the required standard of care), then a surgical nurse might be sufficient to serve as a fact witness.

To be successful during the evidentiary hearing, you must review the OAH contested case rules that are located in the State Government Article of the Annotated Maryland Code and COMAR. After you familiarize yourself with the rules, you should formally request discovery from the administrative prosecutor under COMAR 10.32.02.04C(1), which entitles you to a list of witnesses to be called and copies of documents intended to be produced at the evidentiary hearing.

You need to get this information as quickly as possible, so that you can start preparing your case. As you review these documents, you should identify any documents that might be helpful to your case and mark them as potential exhibits that you may use at the evidentiary hearing.

Before your evidentiary hearing is held, you will be required to take care of a few preliminary matters first, involving the administrative law judge and administrative prosecutor assigned to your case.

The first hearing is usually a scheduling hearing, which will allow the judge to get acquainted with your case and to set a schedule of key deadlines to move the case forward. Be prepared to give the administrative law judge a brief overview of your case and any discovery-related issues (concerning the

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exchanging of evidence intended to be presented at the evidentiary hearing) that you anticipate may arise. After the scheduling hearing, the administrative law judge will issue a scheduling order, which the parties must follow. The scheduling order issued by the court will address deadlines related to discovery and the filing of motions in the case.

Before the evidentiary hearing is held, the parties will be required to file a Pre-Hearing Conference Report, which outlines, among other things:

• Your version of the case; • Evidence you plan on producing; • Documents you intend to rely on; • Identification of any expert witnesses you plan on using at the evidentiary hearing; and • Fact witnesses you plan on having testify on your behalf.

Because it will be very difficult for you to add additional witnesses at the last minute, it is imperative that you have all of your witnesses identified in your discovery responses and Pre-Hearing Conference Report. Failure to do so could result in your witnesses not being able to testify at the evidentiary hearing. Likewise, your expert’s written report also should be completed and ready to attach to your Pre-Hearing Conference Report.

At the evidentiary hearing, be prepared to present your case. The evidentiary hearing is the first real opportunity for you to present your case to a neutral third party, and you have to be ready to take full advantage of the moment. The evidentiary hearing is recorded, and all witnesses are placed under oath. In short, the evidentiary hearing is a trial.

To be successful, you must focus on the theme of your case. You must consider how you will poke holes in the State’s arguments and the witnesses and documents through which you will do that. This is no small task and takes a significant amount of time and skill. It really helps to have the help of an experienced attorney at the evidentiary hearing.

After the evidentiary hearing has concluded, the administrative law judge has 90 days to issue a written decision. Once the written decision is issued, it gets forwarded to the Board. Each party is then given an opportunity to file any exceptions it may have to the judge’s findings.

To properly file exceptions, you must order the transcript of the evidentiary hearing, which you can obtain through the court reporter that was present throughout the evidentiary hearing. In filing your exceptions, you must be sure to point to the testimony and documents in the record that support your exceptions to the judge’s findings and conclusions. After the written exceptions are filed, a hearing before the disciplinary panel is held to allow the parties to further elaborate on their written exceptions. Within 90 days of the exceptions hearing, the disciplinary panel is required to issue its final order.

If you receive an unfavorable decision from the disciplinary panel, you may seek judicial review under Maryland Code, Health Occ., § 14-408(a). Just keep in mind that it’s very difficult to succeed in the judicial review context, because the courts often give the Board significant deference.

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Potential Sanctions

In disciplining licensees, the Board has a wide range of options. Although most of the Board’s disciplinary actions are public, the Board does have the option of issuing a nonpublic advisory letter to a licensee.

These advisory letters are not considered “disciplinary action,” meaning that they cannot be used as an aggravating factor to enhance the penalty handed out by the Board in a subsequent disciplinary action. But they are a means by which the Board educates, informs or admonishes the licensee about their practice.

It is unclear how frequently the Board issues these advisory letters to licensees. If charges have been filed against your license, however, our experience has been that the likelihood of receiving a non-public advisory letter decreases significantly.

The remaining sanctioning options available to the Board to address misconduct include reprimands, placing a licensee on probation, fines, suspensions or revocations of a license or acceptance of a letter of surrender in lieu of charges or further investigation or prosecution.

The Board has a table of Sanctioning Guidelines, which outlines the minimum and maximum penalty range for various offenses. The Sanctioning Guidelines table is located at COMAR 10.32.02.10 and can be found at http://www.dsd.state.md.us/comar/comarhtml/10/10.32.02.10.htm.

Summary Suspension Process

In cases where the Board’s disciplinary panel believes there is a serious or substantial threat to the safety of the public, a disciplinary panel of the Board can initiate the summary suspension process. The summary suspension process is a means by which the Board seeks to quickly place a medical professional’s license on suspension until the disciplinary process is completed.

Unlike with the ordinary disciplinary process where a medical professional’s license remains in place until the Board renders its final decision (which can potentially take months), the summary suspension process suspends the medical professional’s license fairly quickly. Ordinarily, a licensee is given the opportunity to participate in a predeprivation hearing before the disciplinary panel that voted to summarily suspend the licensee.

At the predeprivation hearing, both the licensee and the administrative prosecutor will be given 20 minutes each to make an oral presentation. In situations where it is not feasible for the disciplinary panel to hold a predeprivation hearing, the licensee’s license may be summarily suspended without any notice. You will be provided with the opportunity to make an oral presentation to the disciplinary panel within 15 days of the suspension, but the disruption to your practice will be tremendous. Nevertheless, make sure that you are fully prepared to demonstrate to the disciplinary panel at that hearing that you are not a threat to the health, welfare or safety of the public.

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Concluding Thoughts

You have spent a significant amount of time and money to obtain your professional license and you want to do everything possible to protect it. This short synopsis of the disciplinary process before the Board only scratches the surface of the complexity and breadth that these disciplinary cases can take. The key takeaways from this article should be threefold.

First, to use a sports analogy, “the best defense is a good offense.” If you have an issue that has not yet resulted in a complaint, whether it be a substance abuse issue, a competency issue or any other issue that would raise concerns with the Board, then you need to address that issue quickly. The goal is to avoid having this issue come to the attention of the Board in the first place.

Secondly, if an issue does come up with the Board, consult with legal counsel sooner rather than later. The last thing you should be doing is speaking to one of the Board’s investigators or an administrative prosecutor without representation. Remember, the Board’s mission is to protect the public, not your ability to practice medicine. While you have a duty to cooperate with the Board’s investigation, you also have the right to legal counsel.

Finally, whether you hire legal counsel or not, be proactive in preparing a response to the Board’s allegations and preparing your defense. The more time that you can invest in preparing the defense of your professional license, the more likely you are to be able to assert a successful and compelling defense at trial. When it comes to dealing with the Board, being as prepared as possible truly does lead to a better result than just hoping for the best or preparing at the last minute.

If you or someone you know has a professional licensing issue with the Maryland Board of Physicians, please call one of our experienced professional license defense attorneys at the Law Firm of J.W. Stafford, L.L.C. at (410) 514-6099 or visit our website at www.staffordtrialteam.com.

Disclaimer: This e-book does not constitute legal advice and is not a substitute for hiring experienced legal counsel, as every case and situation is unique.

© 2019 Law Firm of J.W. Stafford, LLC. All rights reserved.